Dispute over terrace wall.
October 29, 2009 | 30,00 EUR | answered by Andreas Scholz
Dear Sir/Madam,
Regarding the background:
Approximately 10 years ago, during the renovation of our house, we built a terrace wall on our property (not on the shared property boundary) with the oral permission of the neighbor.
So far so good.
At some point, this neighbor went ahead and built a conservatory onto our wall, which is on our property, without our consent. In doing so, he cut out a piece of our roof to attach a beam.
The question is: Is he allowed to build onto our wall without our permission? Can I now, after 10 years, say that he needs to restore or close the hole in my roof back to its original state? If so, do I need to provide a reason for this? Is he allowed to today brick our wall (on our side of the property!!) from his side without our permission?
I thank you in advance for your answers and remain
Yours sincerely,
Martina Borowski
Dear questioner,
your neighbor is not allowed to build, extend, brick, or cut parts out on your property if you do not want him to. If he does so anyway, he is liable for damages and potentially also criminally liable. However, there is a limitation:
According to §§ 912, 913 of the Civil Code, you are obliged to tolerate the encroachment on your property by paying a money rent if the neighbor did not act with intent or gross negligence in committing the encroachment.
The fact that the conditions you described have been ongoing for several years does not establish a customary right for the neighbor to demand that his work remain as it is currently.
For a customary right to exist, it is necessary that the parties involved (you and the neighbor) have acted in the belief of "following existing law by adhering to the practice" (BVerfGE 28, 28; RGZ 75, 41; BGHZ 37, 219). Moreover, the subsequent disappearance of a previously held legal conviction may speak against the existence of a customary right. Furthermore, your neighbor would have to provide evidence that the conditions for a customary claim are met.
In conclusion: If the neighbor knew that he was encroaching on the property boundary, he is obligated to dismantle and restore the original condition. If the neighbor did not know or could not have known about the encroachment, then compensation without the obligation to dismantle may be considered (However, considering that a piece of roof has been removed from your house, the neighbor should have questioned whether he was even entitled to do so, so in your case, I would assume you have a claim for damages in the removal of the roof piece).
I hope this information has been helpful. If you have any further questions, please feel free to ask.
Best regards,
Andreas Scholz, Attorney
